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Statement of claims

Verified 06 November 2020 - Directorate of Legal and Administrative Information (Prime Minister), Ministry of Justice

The declaration of claims is a mandatory formality for any creditor who wishes to obtain a refund of the sums of money owed by a company in difficulty. Indeed, when an undertaking is the subject of a collective procedure in order to obtain payment of the sums due to him, the creditor must make a declaration of the debts. The creditor must make known his clear and express wish to claim payment of his claim from the judicial representative.

The creditor must declare prior claims, i.e. those arising before the opening of the collective proceedings.

Any claim must be declared, even if it is a certain or contested claim, which is the subject of an ongoing dispute, a liquid and payable claim. it could be an invoice that has not been paid.

Undeclared claims shall not be taken into account in the collective proceedings and shall not be paid.

Claims subsequent to the opening judgment shall also be covered by the declaration.

However, the claim arising after the opening of the collective proceedings relating to a benefit or in connection with the proceedings must be paid at the end of the period.

The claim for wages and maintenance shall not be affected by the obligation to declare a claim. They must simply be reported to the judicial representative.

Who should make the statement?

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For a natural person

The declaration of claims may be made by:

  • The creditor himself when he is a natural person
  • An agent (for example, a lawyer or judicial officer) or an agent of the creditor (for example, an employee with a delegation of authority)
  • A third party provided that the creditor subsequently confirms it.

Where the claim is not yet established by a security or where its amount has not yet been definitively fixed, the declaration shall be made on the basis of an assessment.

The claim must be certified by the creditor unless it is an enforceable document (judgment, notarial loan for example).

For a company

Where the creditor is a company, the declaration of claims may be made by:

  • The legal representative of the company which is to make the debt declaration
  • An agent (for example, a lawyer or judicial officer) or an agent of the creditor (for example, an employee with a delegation of authority)
  • A third party provided that the creditor subsequently confirms it.

Where the claim is not yet established by a security or where its amount has not yet been definitively fixed, the declaration shall be made on the basis of an assessment.

The claim must be certified by the creditor unless it is an enforceable document (judgment, notarial loan for example).

Where the debtor is a Limited Liability Individual Contractor (LIRA)only claims relating to the assets assigned to the professional activity in difficulty are concerned.

Employees of the company are not subject to this formality.

The statement of claims shall include the following:

  • Amount of the debt due at the time of the opening judgment with indication of the sums due and their due date
  • Nature of the security with which the claim is contingent
  • Method of calculating interest in progress (this term is equivalent to the statement for the amount subsequently decided)
  • Evidence of the existence and amount of the claim if it is not the result of a security
  • Indication of the court seised if the claim declared is the subject of a dispute.

This declaration must be accompanied by supporting documents (for example, copies of an invoice, a purchase order or a delivery note) under a voucher.

Where a claim is brought to the knowledge of the representative by the debtor, it shall be considered as declared.

If the creditor is an administration, it is necessary to specify the provisional or definitive character of the claim.

Statement of claims

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Backup Procedure

Where the undertaking is subject to a safeguard procedure, creditors must transmit the statement of claim to the judicial representative.

Judicial redress

Where the undertaking is the subject of a legal redress procedure, creditors must transmit the statement of claim to the judicial representative.

Judicial liquidation

Where the undertaking is the subject of a winding-up procedure, creditors must forward the statement of claim to the liquidator.

Addressing the statement of claim by registered letter (RAL) with acknowledgement of receipt is proof that the deadlines have been met.

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Open collective procedure in Metropole

The declaration by the creditor must take place within a period 2 months following publication at Bodac: titleContent the judgment opening the collective proceedings.

Warning  

if the creditor is not located in Metropole, the period shall be increased to 4 months.

Collective proceedings opened in an overseas department

The creditor is located in that overseas department

The declaration by the creditor must take place within a period 2 months following publication at Bodac: titleContent the judgment opening the collective proceedings.

The creditor is located elsewhere

The period shall be extended to 4 months where the proceedings are opened by a court located in an overseas department or authority, for creditors who do not remain there.

For creditors benefiting from security (pledge, mortgage in particular) or a contract which has been the subject of publicity, the period for declaration shall begin from the receipt of the "invitation to declare" by LRAR.

Claims arising after the opening judgment which do not enjoy payment privileges must be declared to all participants in the collective proceedings. In this case, the declaration period is 2 months from the first unpaid maturity, whether or not it has been regularized.

A creditor who has not made his declaration within the time limit may no longer assert his rights during the proceedings, he shall be considered as forclos..

He may ask the court to be exempted from this restriction if he can demonstrate that the delay was not caused by him (hospitalization) or the debtor. For example, the debtor forgot to mention it in the list of creditors.

He must address an application to the judge-commissioner within 6 months of the publication of the opening judgment in the Bodacc.

If the creditor obtains a favorable response, he must declare the claim within 1 month of notification of the decision to foreclosure statement..

The creditors' representative or the liquidator shall draw up the statement of claims and draw up his proposals for admission or rejection.

Any disputes shall be decided by the Judge-Commissioner.

FYI  

The creditor who made the declaration need not issue a formal notice to the debtor. The declaration shall interrupt the period of limitation of the collective proceedings until its closure.

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